Connor v Southern Queensland Regional Parole Board
[2014] QSC 302
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- Unreported Judgment
- Connor v Southern Queensland Regional Parole Board[2014] QSC 302
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Connor v Southern Queensland Regional Parole Board[2014] QSC 302
Connor v Southern Queensland Regional Parole Board[2014] QSC 302
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Application |
DELIVERED ON: | 18 December 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 December 2014 |
JUDGE: | Alan Wilson J |
ORDER: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant was sentenced to two and a half years’ imprisonment for a variety of offences including receiving tainted property, unlawful use of motor vehicles, assaulting or obstructing police, and serious assault – where the sentencing Magistrate released him immediately on parole – where the respondent Board revoked the applicant’s parole after he failed a drugs test and was later convicted of further similar offences – where the applicant seeks review of the respondent Board’s decision to revoke his parole – where the applicant contends that the Board’s decision was tainted by a failure to consider the merits of his application; a denial of natural justice; an incorrect application of a rule or policy; an improper exercise of the Board’s power; and a failure to give proper consideration to the applicant’s submissions – whether the respondent’s decision is open to judicial review CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – BOARDS, TRIBUNALS ETC.: POWERS, DUTIES AND CONSTITUTION – where the respondent Board’s powers with respect to revoking a prisoner’s parole are set out in s 205 of the Corrective Services Act 2006 (Qld) – where s 208 of the Act establishes a procedure by which a prisoner whose parole has been revoked can, in response to the information notice that must be given to him or her by the Board, through written submissions argue why the Board should change its decision – where the Board must then consider all properly made submissions and inform the prisoner, by written notice, whether it has changed its decision and, if so, how – where the applicant makes no complaint as to whether that procedure has been properly followed by the respondent Board, and where there appears to be no evidentiary basis for finding that it had not been adhered to – whether that apparent compliance with s 208 influences the applicant’s application for judicial review Corrective Services Act 2006 (Qld), s 3, s 200, s 205, s 206, s 208, s 227, Ch 5 Div 5 Judicial Review Act 1991 (Qld), s 20 Blizzard v O'Sullivan [1994] 1 Qd R 112, cited Donovan v Southern Queensland Regional Parole Board, Unreported, 26 July 2012, cited Gough v Southern Queensland Regional Parole Board [2008] QSC 222, cited McQuire v South Queensland Regional Community Corrections Board [2003] QSC 414, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Re Minister for Immigration and Multicultural Affairs: ex parte Lam (2003) 214 CLR 1, cited |
COUNSEL: | The applicant appeared on his own behalf G Handran for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Crown Solicitor for the respondent |
[1] Alan Wilson J: Mr Connor was sentenced to two and a half years’ imprisonment in March this year for a variety of offences, including receiving tainted property, unlawful use of motor vehicles, assaulting or obstructing police, and serious assault. He was, however, immediately released by the sentencing Magistrate on parole.
[2] His parole has since been cancelled by the Board and he has been in custody since early August. The revocation occurred after he failed a drugs test and, later, was convicted of further offences of a similar kind. He seeks statutory review of the cancellation decision of the Parole Board, made on 11 August 2014.
Mr Connor’s convictions, parole and parole cancellation
[3] The conditions of the parole order imposed in the Magistrates Court on 13 March 2014 included requirements stipulated in s 200 of the Corrective Services Act 2006 (Qld): namely, that Mr Connor carry out any lawful instruction from the Chief Executive, and not commit any offence.[1]
[4] The following day, 14 March 2014, the Chief Executive directed Mr Connor to abstain from illicit substances. Regrettably, it seems he did not do so: on 14 May 2014 he provided a positive urine test and the Chief Executive suspended his parole for 28 days.
[5] Then, on 22 July 2014 he was convicted of further crimes including property-related offences, assaulting and obstructing police, and unlawful assault. On each of nine charges he was sentenced to six months’ imprisonment; each term was, however, immediately suspended with an operative period of two years.
[6] After learning of those further charges the Board suspended his parole on 28 July and later, on 11 August, cancelled it altogether. He has been in custody since that time.
Cancellation of parole under the Corrective Services Act 2006
[7] The functions of the Board (and the Chief Executive) in respect of any existing parole order are set out in the CSA.[2] The Board has power to amend, suspend or cancel a parole order (s 205) and to issue a warrant for a prisoner’s arrest (s 206). If the Board suspends or cancels parole it must give the prisoner an information notice informing him of the decision, advising him of the reasons, and inviting him to show cause, by written submissions, why the Board should change its decision. It must then consider all properly made submissions and inform the prisoner, by written notice, whether it has changed its decision and, if so, how (s 208).
[8] Here, the Chief Executive suspended Mr Connor’s parole after the positive urine test, on 15 May 2014. Then, on 2 June, the Board suspended his parole for that breach. On 15 July he was given the information notice inviting him to show cause why the Board should change its decision to suspend parole. Mr Connor made submissions, in mid-July.
[9] Then, on 22 July, he was convicted of the further offences. On 28 July the Board determined to suspend his parole, relying on both the failed urine test and his reoffending.
[10] On 31 July he was given an information notice calling upon him to show cause why the Board should change the decision to suspend. On 11 August the Board determined to cancel his parole in light of the re-offending. On 14 August the Board received Mr Connor’s further submissions.
[11] On 20 August the Board gave him another information notice, again inviting him to show cause why the Board ought to change its cancellation decision of 11 August. On 22 August Mr Connor requested a statement of reasons, and on 5 September he began the current proceedings.
[12] The Board delivered its reasons on 17 September and, later, on 29 September considered his submission and determined not to vary its decision to cancel his parole.
The Board’s discretion
[13] Mr Connor does not dispute that he re-offended. Under s 205(2)(c) the Board had, then, a discretion to amend or suspend his parole order. Under s 205(3) the Board must, if practical before amending a parole order, give the prisoner an information notice and an opportunity to be heard.
[14] That is not, however, required under the statute when the Board suspends or cancels a parole order (s 205(4)). Once the decision to cancel is made the Board is required to give such a notice and then, if the prisoner makes submissions, consider whether or not to change its decision (s 208).
[15] The Board’s discretion under s 205 is wide, and unconfined, except as the matter and scope of the statute itself dictates. Under s 3(1), the primary object of the CSA is for community safety and crime prevention.[3] That objective is central to any consideration of the claims Mr Connor makes in support of his application for review.[4]
[16] It is not in issue that the Board’s decision to cancel is amenable to proceedings for review under the Judicial Review Act 1991 (Qld).
Mr Connor’s complaints
[17] In his application Mr Connor raises what are said to be two grounds of error on the part of the Board: failing to consider the merits of his application (by using inaccurate and outdated information); and, denial of natural justice.
[18] In Further and Better Particulars which he provided he raised further grounds: first, that the decision was wrongly based upon a rule or policy (a document called ‘Ministerial Guidelines’), which, he says the Board too slavishly applied: an improper exercise of the Board’s power, and, a failure to give proper consideration to Mr Connor’s submissions.
[19] These complaints were not articulated, by Mr Connor, in terms which attempted to show how they fit within the various grounds for review set out in s 20(2) of the JRA but, again, I did not understand the respondent to take any point about that; each complaint can be seen to have, at least, an arguable connection with the generally-worded grounds in that sub-section.
[20] It is appropriate, then, to consider each of these grounds which, at the hearing of the matter, Mr Connor confirmed that he wished to raise, and rely upon.
Application of a policy
[21] The Ministerial Guidelines to which Mr Connor seems to be referring are published under s 227 of the CSA and appear as an exhibit to an affidavit filed on the respondent’s behalf.[5] They permit, but do not require, a number of factors to be considered before the Board cancels parole when the cancellation is based on a failure to comply with a parole order. Nothing in the guidelines affords a prisoner, however, any right to be heard. Mr Connor has not attempted to stipulate which guideline (or rule, or policy) the Board is said to have place excessive reliance upon.
[22] The guidelines alert the Board to the need, when considering cancellation, to take into account such factors as a prisoner’s response to parole to date; their personal situation; the circumstances surrounding the re-offending; and, the seriousness of it. The policy reminds the Board that ‘… care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case’.
[23] The statement of reasons provided by the Board confirms (and it is not in dispute) that Mr Connor breached two of the six conditions of his parole within a relatively short time of release. The reasons make it plain that the Board took those matters into account and there is nothing to suggest that it gave any factor excessive, undue, or inappropriate consideration or weight.
[24] In his submissions Mr Connor refers on several occasions to the judgment in Gough v Southern Queensland Regional Parole Board.[6] It is not, in my respectful view, of relevance or assistance here. It was a case in which the prisoner had been required to serve a stipulated part of his sentence, for sexual offences, in custody before becoming eligible for parole. During his imprisonment he has been assessed as low risk but had not been offered, and had therefore not had the opportunity to complete, any recommended programs as part of his rehabilitation.
[25] In Gough the Board, Applegarth J found, failed to take into account the prisoner’s express willingness to undertake those courses before he was eligible for parole, and the prison authority’s failure to offer them to him or allow him time to complete them before the date upon which he became eligible for parole. His parole application was refused on grounds which included the fact that he did not complete the recommended programs. The case was, then, one in which a policy had been applied without regards to the merits of the prisoner’s individual circumstances.
[26] That is quite different from Mr Connor’s case. He received immediate parole upon being sentenced and was, therefore, immediately offered the chance to meet his parole conditions and, by compliance with them, avoid imprisonment. This is not a case in which the system has failed the prisoner – but, rather, one in which he has failed to meet unexceptionable conditions of his parole.
[27] In the present case the Board’s decision necessarily involved a value judgment about his circumstances which included breaches of parole conditions of which the second, serious reoffending was plainly material. Mr Connor’s prior criminal history and pattern of offending was also relevant and material. In light of these relevant factors, it cannot be said that the Board’s decision was apparently unreasonable, unjustified or, indeed, surprising.
[28] There is nothing, then, to suggest inappropriate reliance upon, or the inappropriate application of, any part of the guidelines. This ground is not made out on the evidence.
Denial of natural justice
[29] Mr Connor was offered the opportunity to make written submission before the hearing. Although his original application alleged a denial of nature justice, I did not understand his submissions to maintain that ground (although he said, during oral submissions at the hearing, that he did so). It is appropriate to address the ground, if only out of fairness to him.
[30] The statutory provision conferring the power to cancel expressly provides that the Board is not required to give the prisoner a information notice, or a reasonable opportunity to be heard. That, in light of the subsequent s 208, is unsurprising: the later provision creates a statutory framework for reconsideration, by the Board, of any decision it has made to suspend or cancel its parole.
[31] Decisions to suspend or cancel may sometimes need to be made in haste and, in light of that circumstance, a provision allowing the Board to reconsider its decision at greater leisure is obviously appropriate and reasonable. As Applegarth J said in Donovan v Southern Queensland Regional Parole Board,[7] s 205(4) alters what would otherwise be an application to accord natural justice, but that alteration is explicable because of circumstances which might involve urgency and its effects are ameliorated by the review required under s 208.
[32] No information notice was required to be given to Mr Connor, then, in respect of the Board’s decision to cancel the applicant’s parole order, as it did on 11 August. But an information notice was given, under s 208, later in August and the Board did consider Mr Connor’s written submissions and resolved, in an exercise obviously referrable to s 208, not to change its earlier decision.
[33] Mr Connor does not complain about that reconsideration process by the Board or seek any review of it. He is not a lawyer and it is possible that, in confining his application for review to the Board’s earlier decision to cancel on 11 August, he has failed to appreciate the statutory process and the involvement of s 208. It is appropriate, then, to address his complaints as though he also challenged the reconsideration exercise.
[34] When legislation confers a power which may be exercised without regard to the principles of natural justice, the fact that the process (involving in particular, here, the information notice) may raise hopes or expectations of a hearing on the part of the recipient. But the possibility that hopes of that kind may arise does not, itself, give rise to a duty of fairness; if the statutory framework is not one which attracts a duty to accord natural justice no duty of that kind arises, in passing, from the conduct of the decision maker.[8]
[35] Further, in the present case, even if such a duty did arise the Board’s conduct was not of a kind which would enlarge it. In Lam the applicant was notified that consideration was being given to the cancellation of his visa on the ground that he did not satisfy a ‘character test’ because of his criminal record. He made detailed written submissions to the Department in which he pointed out that he had two children who were Australian citizens, who would be adversely affected if he were deported. Department requested contact details of the children’s carer and he provided them. The Department did not, however, contact the carer before making the decision to cancel his visa.
[36] The applicant alleged that the representation by the Department that it would contact his children’s carer created a legitimate expectation that this step would be taken, and failure to do it was a breach of procedural fairness. The High Court firmly rejected that proposition, holding that failure to comply with the representation may in some in circumstances constitute a breach of professional fairness, but would not necessarily do so.[9]
[37] Here, the delivery of two information notices to Mr Connor in July 2014 (in circumstances where the CSA did not actually require their delivery before a decision was made by the Board) related to the decision to indefinitely suspend the parole order. There was no reference to prospective cancellation.
[38] It is too great a stretch to categorise those information notices as a promise or representation that, for example, a further information notice might issue before a decision was made to cancel parole, or that Mr Connor would be given an opportunity to be heard before action of that kind might be taken. That proposition applies with particular force when, as here, the legislation provides a statutory process for reconsideration.
Other grounds
[39] Next, Mr Connor alleges that the Board exercised its power ‘improperly’. As observed earlier the Board’s discretion under s 205 is unconfined, and is limited only by the scope and purpose of the Act. What is relevant or irrelevant in any particular case will depend upon what the statute expressly requires the Board to consider (or, as the case may be, ignore).[10]
[40] The weight the Board chooses to give to any particular factor in any particular matter remains within its discretion, under the statute. It is clear that the Board considered Mr Connor’s written submissions when it undertook the exercise of reconsideration required by s 208. Once that is clear, and that there is nothing to suggest any misapplication of other discretionary factors, the Board has discharged its function.
[41] Again, Mr Connor is not a lawyer and his submissions, while referring to the judgment in Gough, are not articulated in legal terms. It appears that he alleges a failure on the part of the Board to consider the likely penalty he would receive if he was convicted of the further charges; but, nothing in the Act requires the Board to consider that factor and it is not a relevant consideration under the CSA.
[42] In any event, the Board’s statement of reasons shows it did consider the nature and seriousness of those further offences, and the penalty imposed for them. It also, properly, took into account the striking similarity between them and those for which Mr Connor had, originally, been granted parole; and that is a matter to which the guidelines, unexceptionally, direct particular attention.[11]
[43] It is apparent from the reasons that the Board considered Mr Connor’s response to parole, including his relatively early breach in respect of drug use and the later (but still relatively early) serious breach by the commission of further similar offences. In the process of reconsidering its decision under s 208 the Board had the opportunity to consider (and did consider) the penalty actually imposed for the later offences.
[44] That circumstance also means there is nothing in Mr Connor’s complaint that the Board used outdated information. As I understood his submission, it was that the decision to cancel was made at a time when the Board did not have details of the suspended sentence imposed for his second tranche of offences. The position is not clear from the Board’s material, but that is possible; even so, it is the fact of re-offending, not the penalty that might have been imposed for it, which is principally material to any decision about ongoing parole; and, in any event, the Board certainly knew details of the second penalty, the suspended sentence, when it undertook its review under s 208.[12]
[45] Last, he complains that the Board failed to properly consider his submissions. Mr Connor did not, however, provide any further submissions before it decided to cancel his parole and, once that decision was made, the Board has fulfilled its function. Any concern that this might operate harshly against Mr Connor is, again, ameliorated by the fact his submissions were considered and taken into account when the Board undertook its statutory reconsideration under s 208.
[46] None of Mr Connor’s grounds of complaint are, then, made out.
Conclusion
[47] Section 208 of the CSA sets out a procedure for the Board to reconsider a decision to cancel parole, after a decision of that kind has been made. That procedure was apparently followed here, and Mr Connor makes no complaint about it. So far as can be seen from the extensive material provided by the respondent, no basis for complaint could in fact be made.
[48] Mr Connor has, therefore, had the opportunity of the statutory right of review provided by s 208 and it has been performed in a way which reveals no error on the Board’s part. Even if that were not so, nothing in his application concerning the Board’s original decision to cancel his parole attracts a right to relief under the JRA.
[49] His application for review must be dismissed.
Footnotes
[1] Section 200(1)(b) and (f).
[2] Ch 5, Div 5, sub-Divisions 1 & 2.
[3] McQuire v South Queensland Regional Community Corrections Board [2003] QSC 414, per White J (as her Honour then was) at [28].
[4] Blizzard v O'Sullivan [1994] 1 Qd R 112, per Thomas J (as his Honour then was) at [117].
[5] Affidavit of James Male filed 31 October 2014, Ex JM 13.
[6] [2008] QSC 222.
[7] Unreported, 26 July 2012.
[8] Re Minister for Immigration and Multicultural Affairs: ex parte Lam (2003) 214 CLR 1.
[9] Ibid, at 12-13 per Gleeson CJ.
[10] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
[11] Exhibit 13, Guidelines, clause 6.4.
[12] Affidavit of Male, Ex JM 12, p. 16.